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Assault and Battery on a Family Member

Assault and Battery on a Family or Household Member, 209A Violation, Strangulation and Other Massachusetts Domestic Violence Crimes

We discuss domestic violence tactics and procedure here. If you have been arrested for a domestic violence crime, you are likely being charged with one or more of the following offenses:

Assault and Battery on a Family or Household Member (Mass. Gen. Laws ch. 265, §13M)

Assault and battery on a family or household member is a misdemeanor if it is a charged as a first offense. This means you can be punished by no more that two-and-one-half years in the house of correction. A second offense of domestic assault and battery is a felony, and can be punished by up to five years in state prison.

Most of us believe an assault and battery occurs by punching or violently striking a person. The law is much broader. You can be guilty of assault and battery if you simply touch somebody, even slightly, if you had no right or legal excuse to touch the person and without that person's consent. Even if the person did consent to being touched, you can still be found guilty if the touching was likely to cause physical injury to that person.

You can also be found guilty of assault and battery if you did not intend to touch them, but did so "recklessly" and the person was injured as a result. An example of a "reckless assault and battery" is wildly swing your arms while you are near another person. Even if you did not mean to strike the person, you have committed an assault and battery if you do strike them accidentally and they are injured.

A "family or household member" under this law is a (1) spouse or former spouse, a (2) person you have had a child with or (3) a person you have dated "substantively." A "substantive" dating relationship has no firm definition. It generally means a person you have have dated with some level of seriousness.

It is important to note that this definition of "family or household member" is more narrow than the the definition that applies to Massachusetts 209A restraining orders (and restraining order violations). That law includes as "family or household members" (1) spouses and ex-spouses, (2) people who live or have ever lived together, (3) people related by blood or marriage, (4) people who have had a child together and (5) people in a "substantive dating relationship." M.G.L. ch. 209A §1.

Assault and Battery with a Dangerous Weapon ("ABDW") (Mass. Gen. Laws ch. 265, §15A) is similar to assault and battery. The added element is that a person must "touch" another with an item or object used in a dangerous fashion, or that is in itself a "dangerous weapon," like a knife or a gun. An item "that is normally used for innocent purposes can become a dangerous weapon if it is intentionally used as a weapon in a dangerous or potentially dangerous fashion." Commonwealth v. Moore, 36 Mass. App. Ct. 455, 458 (1994). For example, a "shod foot" can be a dangerous weapon if an accused person kicks somebody with a shoe or boot. A lit cigarette can be a dangerous weapon.

"ABDW" is a felony which carries up to 10 years in state prison and $5,000 fine.

209A Orders and Violation of a 209A Abuse Prevention Order ("Restraining Order") (Mass. Gen. Laws ch. 209A, §7) Chapter 209A Abuse Prevention Orders

Chapter 209A complaints and orders are civil orders designed to protect family, household or dating relations from abuse. Massachusetts judges issue 209A abuse prevention orders after two hearings. The first hearing is "ex parte." This means that the person asking for protection appears alone and without notice to the other person. This first, temporary order can be issued for up to ten days. On or before the tenth day, the court must hold another hearing that gives the other party an opportunity to appear and demonstrate that there is no need for a 209A order.

To issue the first, temporary 209A abuse prevention order, the court must find that there is "a substantial likelihood of immediate danger of abuse." Mass. Gen. Laws ch. 209A, §4. To extend the order after a full hearing, the court must find a substantial likelihood of continued "abuse" upon a family or household member. Banna v. Banna, 78 Mass. App. Ct. 34 (2010). Massachusetts' 209A law defines "abuse" as (a) attempting to cause or causing physical harm. (b) placing another in fear of imminent serious physical harm, or (c) causing another to engage involuntarily in sexual relations by force, threat or duress. M.G.L. Ch. 209, §1.

A 209A abuse prevention order can order the defendant to do, or not do, many things, including:

  • prohibiting the defendant from abusing the defendant;
  • prohibiting the defendant from contacting the plaintiff or the plaintiff’s children;
  • ordering the defendant to vacate and stay away from any residence or workplace;
  • awarding the plaintiff temporary custody of any minor children;
  • restricting visitation with any minor children, including ordering supervised visitation or requiring the defendant to attend counseling as a condition of visitation;
  • ordering the defendant to pay temporary spousal support or child support;
  • ordering the defendant to pay restitution (reimbursement) for any costs incurred as a result of abuse, such as lost earnings, replacement costs for locks, medical expenses, or moving expenses;
  • ordering the defendant to pay the plaintiff’s attorney’s fees, and
  • ordering the defendant attend counseling.
Violations of 209A Abuse Prevention Orders

It is a crime in Massachusetts to violate a 209A abuse prevention order. M.G.L. Ch. 209, §7. If you are found guilty of violating an abuse prevention order, you can be punished for up to two-and-one-half years in the house of correction and be ordered to take a battery's program certified by the state.

Violations of a 209A abuse prevention orders must be "intentional." The prosecution must prove that the accused had notice of the order. The prosecution must also prove that the violation of the order was deliberate. A person who finds him or herself in the presence of the other person by accident is not guilty of violating the order as long as the person leaves immediately when he or she learns that the other person is nearby. Commonwealth v. Stoltz, 73 Mass. App. Ct. 642 (2009).

"Stalking"(Mass. Gen. Laws ch. 265, §43) and "Harassment" (Mass. Gen. Laws ch. 265, §43A).

Stalking and criminal harassment are very similar crimes in Massachusetts. Both crimes require "a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress." You can be guilty of stalking or harassment no matter how you commit the alarming conduct, whether in person, by phone, text message, fax or otherwise.

Stalking is far more serious with graver punishment. Stalking is different from criminal harassment because it also requires that the accused "makes a threat with the intent to place the person in imminent fear of death or bodily injury." M.G.L. ch. 265, §43. Stalking is a felony. You can be sentenced to five years in state prison if you are found guilty of a first offense. A second offense carries a mandatory minimum sentence of two years in the ouse of correction or state prison. Stalking when there is a protection order or abuse prevention order in effect has a mandatory minimum sentence of one year in the house of correction or state prison.

Harassment is still a serious offense. Unlike stalking, a person does not need to make a threat to be guilty of harassment in Massachusetts. While it is a misdemeanor, harassment carries a maximum two-and-one-half year penalty in the house of correction.

Intimidation of a Witness (Mass. Gen. Laws ch. 268, §13B).

Massachusetts domestic violence prosecutions often include a charge of "intimidation of a witness" under section 13B of General Laws 268 that was intended to make it a crime to attempt to interfere with a pending or potential court case, whether criminal or civil. Our courts of appeal have interpreted parts of the law to include trying to prevent a person from contacting the police even if there is no criminal case in existence at the time. This can be done by threats, violence, harassment, intimidation, misleading a person or even making promises or bribes.

A common scenario in these cases occurs when a domestic partner grabs the telephone from the victim during an argument, or makes a comment designed to convince the other not to contact the police.

Intimidation of a Witness in Massachusetts is a serious felony. You can be punished by up to ten years in state prison if you are found guilty of this offense.

Strangulation or Suffocation (Mass. Gen. Laws ch. 265, §15D).

It has always been a crime in Massachusetts to commit an assault and battery, or an attempted murder, by grabbing somebody's neck or throat. In 2014, as part of a larger domestic violence initiative, our legislature made this a specific crime. You commit this offense if you cause the"intentional interference of the normal breathing or circulation of blood by applying substantial pressure on the throat or neck of another," or, in "suffocation," if you cause "the intentional interference of the normal breathing or circulation of blood by blocking the nose or mouth of another."

Strangulation or Suffocation in Massachusetts is a serious felony. You can be sentenced to up to five years in prison. A second offense of this crime carries a maximum penalty of ten years in state prison. You can also be sentenced to ten years in state prison for an "aggravated" commission of this offense, which involves committing the crime against a pregnant woman or causing serious bodily injury, or if the accused was a defendant in a protection or restraining order.

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